Background Checks and Job Offers: Recent Court Ruling That Employers Need to Know
Oct 5, 2018 | Written by: | Share
Employers beware…if you intend to revoke an offer of employment based on information obtained from a background check, you must first provide a copy of the background check report to the job applicant. Otherwise, the applicant will have the option to sue you under the Fair Credit Reporting Act (FCRA), according to a ruling that was affirmed by the United States Court of Appeals for the Third Circuit on Sept. 10, 2018.
In the case at issue, Long v. SEPTA, the employer extended a conditional offer of employment to three job applicants, which was contingent upon the applicants passing background checks. The background checks for each applicant revealed past drug convictions. As a result, each applicant was merely informed that they were not being offered positions because of the convictions.
Under FCRA, an employer who denies employment to a job applicant based on a background check must provide the applicant with a copy of the report and a copy of the applicant’s FCRA rights before denying employment, regardless of the report’s accuracy. The Court reasoned that the purpose of the Act is to permit applicants the opportunity to respond to and correct inaccurate information. Additionally, applicants should know beforehand when consumer reports might be used against them, “either in the current job application process, or going forward in another job application.”
It is important for employers to take all measures to protect themselves against FCRA violations, as the ACT provides applicants with the standing to seek damages, plus potential punitive damages, attorney’s fees, and costs for willful violations of the Act.
Leslie A. Parikh, Esq., is a partner with Gebhardt & Kiefer, PC. She practices primarily in the areas of employment law, civil rights litigation, municipal law, insurance defense, and the representation of public entities in both State and Federal Court. Contact Ms. Parikh at 908-735-5161 or via email.
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